Lurking in the darkest corners of San Francisco’s Parkmerced Development Agreement is the question of enforceability of the agreement’s rent control provision. The elusive answer remains shadowed in odd mystery, and the Board of Supervisors has done little to shed much needed light on the controversial issue.
Can the City require replacement of existing rent controlled housing scheduled for demolition?

California’s Costa-Hawkins Act prevents local regulations from requiring rent control on new construction. Rent control on the new apartments might make the project economically impractical.

But the City Attorney’s Office position is that rent control is part of the contract, and there is no reason to believe the contract will be violated or challenged. Despite that assurance, the Board of Supervisors spent several hours discussing the enforceability question during its March 29, 2011 hearing on appeal of the Planning Commission’s 4-3 vote approval of the environmental impact report.

The Board ultimately chose to continue their decision on the appeal to May 24th to allow time to consider the oddly mysterious legal standing of the City to enforce such a condition.Parkmerced

Meanwhile, the Parkmerced Development Agreement itself was assigned to the Board’s Land Use Committee for May 16, 2011. Committee Chair Eric Mar opened the meeting by explaining that, because the item had been improperly noticed, no action could be taken—the item would be continued to the committee’s May 24th hearing.
Supervisor Sean Elsbernd introduced “technical amendments” to the agreement. Discussion ensued, including enforceability of the rent control provision and Chair Mar’s concern that energy consumption might need revision. Members of the public were provided copies of the revised agreement and were told it would be available online later that day.
The newly introduced amendments were then approved by the committee, notwithstanding Chair Mar’s repeated declaration that no action would be taken on the agreement until May 24th.

One week later, on May 24th, two separate meetings were scheduled that involved approval of the Parkmerced project, one was the Land Use Committee’s continued discussion at 9 am and the other was the regularly scheduled meeting of the full Board of Supervisors later that same day at 2 pm. The Land Use Committee was to make a referral on the agreement to the Board. The Board was then scheduled to vote on approval of both the Parkmerced environmental impact report and the Development Agreement itself.
At the May 24th Land Use Committee, a brief presentation of the amendments previously introduced at the May 16th hearing was provided. Then Supervisor David Chiu introduced fourteen pages of new amendments specifically directed at tenants’ rights—the murky subject at issue for two months. These new amendments were not mentioned at the beginning of the hearing or at the meeting one week prior.

Supervisor Chiu said he and city attorney Charles Sullivan had stayed awake all night working on the amendments and Supervisor Cohen, a member of the committee, admitted she had only had about one hour to review the newly introduced amendments. Chair Mar expressed concern with a lack of transparency and that approval of the amendments would constitute a violation of Sunshine Ordinance public comment requirements.

The city attorney told the committee the agenda description of the Development Agreement was broad enough to encompass Chiu’s amendments. The amendments were approved, leaving only a few hours for the public to review and comment on amendments to a contract provision the Board had allowed itself two months to review. Several hours later on the same day, the Development Agreement was approved by the full Board.

On June 20, 2011, an anonymous complaint was filed with the Sunshine Ordinance Task Force against Supervisor Mar for alleged violations of the Sunshine Ordinance.
The Sunshine Ordinance Task Force concluded that the last minute introduction of fourteen pages of amendments did not provide adequate time for members of the public to review and comment on them as required under Sunshine Ordinance Sections 67.15(a) and (b), and were substantive changes to the Development Agreement for which the agenda description for the meeting was not adequate under Sunshine Ordinance Section 67.7(b).

Supervisors Eric Mar, David Chiu, Scott Wiener, and Malia Cohen were found in violation of those sections of the ordinance. Each supervisor is required to adhere to state and local open government laws, and their acknowledgement of their own lack of review of important and controversial amendments was minimal at best.

The Parkmerced Development Agreement had been deferred two additional months for review and there was no reason that another week to allow transparency in the process would damage the agreement. This project is scheduled to take up to 30 years to complete and many residents will be displaced from their homes in the process.